Opinion
H15NCR110261514
09-21-2017
State of Connecticut v. Wilfredo Santana
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE VIOLATION OF PROBATION
Julia DiCocco Dewey, Judge.
I. Procedural History
On July 30, 2013, the defendant was convicted of Sale of a Controlled Substance and was sentenced to seven years incarceration, execution suspended after two years, and three years probation. The standard conditions of the defendant's probation included that he refrain from violating " any criminal law of the United States, this state or any other state or territory." The defendant was aware of the conditions of his probation, having acknowledged them in writing and reviewed them on two separate occasions with his probation officers.
On February 26, 2016, the defendant was arrested and charged with Sexual Assault in the First Degree, Sexual Assault in the Fourth Degree and Illegal Sexual Contact with a Child and, subsequently, with violation of probation. The sole basis for the violation of probation charge was the February 2016 arrest.
On September 19, 2016, this court heard evidence in support of the charged violation of probation.
II. Evidence in Support of the Violation of Probation Charge
The record is sparse with respect to the circumstances leading to the defendant's arrest. The Trial Court file does not contain an unsealed copy of the arrest warrant affidavit. Based on the evidence elicited at the revocation hearing, the court finds the following.
The minor complainant in this case, A.L., was three years old at the time of the events at issue. In September 2015 she made statements in the presence of diverse family members wherein she complained of pain in her vagina. As a result of those statements, family members took A.L. to a medical facility. Subsequently A.L. was taken to the Children's Advocacy Center in Hartford Connecticut where trained personnel interviewed the child.
There is no evidence concerning why the family members suspected sexual abuse. Her specific initial complaints are not part of the record. Nevertheless, evidence established that A.L. initially identified four men as the source of her pain. She identified the defendant after naming three other individuals. At an unknown subsequent date the investigation focused upon the defendant.
A.L.'s father could not recall the specific complaints nor could he provide the court with a concise version of actions taken subsequent to the disclosure. His testimony, at best, was contradictory. No other family member testified.
In September 2016 A.L. attended the aforementioned forensic interview. Lisa Murphy Cippolla, an experienced, trained, specialist, conducted the interview. Ms. Murphy-Cippolla could not recall A.L.'s mother expressing any concerns about the child's health. The child expressed none.
During the interview A.L. presented as a typical five-year-old child, sometimes engaged, often distracted. When asked about her pain, A.L. stated the defendant had touched her vagina and had touched her from behind with his penis. A.L. stated that she was unclothed. She further stated that the defendant was partially clothed.
Medical personnel did examine A.L. The results are not part of the court record.
Discussion
" Revocation of probation hearings, pursuant to Connecticut General Statutes § 53a-32, are comprised of two distinct phases, each with a distinct purpose . . . In the evidentiary phase, [a] factual determination by a trial court as to whether a probationer has violated a condition of probation must first be made . . . In the dispositional phase, [i]f a violation is found, a court must next determine whether probation should be revoked because the beneficial aspects of probation are no longer being served." (Citations omitted; internal quotation marks omitted.) State v. Preston, 286 Conn. 367, 375-76, 944 A.2d 276 (2008).
" The law governing the standard of proof for a violation of probation is well settled . . . [A]II that is required in a probation violation proceeding is enough to satisfy the court within its sound judicial discretion that the probationer has not met the terms of his probation . . . It is also well settled that a trial court may not find a violation of probation unless it finds that the predicate facts underlying the violation have been established by a preponderance of the evidence at the hearing--that is, the evidence must induce a reasonable belief that it is more probable than not that the defendant has violated a condition of his or her probation . . . In making its factual determination, the trial court is entitled to draw reasonable and logical inferences from the evidence . . ." State v. Maurice M., 303 Conn. 18, 26-27, 31 A.3d 1063 (2011).
" The only evidence of criminal conduct by this defendant is that contained in A.L.'s forensic interview. Because A.L. did not testify at the probation violation hearing, this court's consideration of that interview is constrained by the Confrontation Clause." Crawford v. Washington, 541 U.S. 36, 60 n.9, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
The tender years exception to the hearsay rule, Connecticut Code of Evidence § 8-10(c), does not apply in the present case.
The interview is pure hearsay, an out-of-court statement " offered in evidence to establish the truth of the matter asserted." Connecticut Code of Evidence § 8-1(3). Nevertheless, Connecticut Code of Evidence § 8-3(5) provides that, " A statement made for purposes of obtaining a medical diagnosis or treatment and describing medical history, or past or present symptoms, pain or sensations, or the inception or general character of the cause or external source thereon, insofar as reasonably pertinent to the medical diagnosis or treatment" is not excluded by the hearsay rule.
The face that the interview is admissible does not render the interview reliable. The basis of the medical exception rule is that the declarant, when seeking medical assistance, would have a strong incentive to tell his or her physician the truth. The patient's purpose controls.
In this case, in order to render the forensic interview reliable, A.L.'s purpose must be determined inferentially. See State v. Giovanni P., 155 Conn.App. 322, 332, 110 A.3d 442 (2015); State v. Telford, 108 Conn.App. 435, 441, 948 A.2d 350, cert. denied, 289 Conn. 905, 957 A.2d 875 (2008) (" [A] subjective understanding need not be proven if the objective circumstances of the interview would support an inference that a juvenile declarant knew of its medical purpose"). (Emphasis added; footnote omitted.)
Unfortunately, there is no evidence upon which to base any inference. A.L. was too young to testify. Neither parent provided information concerning the forensic interview. There is no baseline upon which to gauge this child's responses to sensitive questions. The video does nothing to help this finder of fact determine the child's demeanor. The laudable purpose of the interviewer is not relevant.
In order for the State to prevail in this matter, it was obligated to present reliable evidence that would result in a reasonable belief that it is more probable than not that the defendant has violated a condition of his probation. The State has failed to meet that burden.
The Defendant is found not guilty.